Stafford v. State

• Decision Date: 31 August 1988
• Docket Number: No. 01-86-00812-CR,01-86-00812-CR
• Citation: 758 S.W.2d 663
• Parties: Edmond Albert STAFFORD, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 663

758 S.W.2d 663

Edmond Albert STAFFORD, Appellant, v. The STATE of Texas, Appellee.

No. 01-86-00812-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Aug. 31, 1988.

Mary B. Hennessy, Houston, for appellant.

John B. Holmes, Dist. Atty., Harris County, Calvin Hartmann, Asst. Dist. Atty., for the State.

Before EVANS, C.J., and SAM BASS and DUNN, JJ.

OPINION

SAM BASS, Justice.

A jury convicted appellant of delivery of more than 28 grams of cocaine and assessed punishment at 75 years confinement and a $20,000 fine. The trial court reformed the judgment to delete the fine.

Court-appointed counsel on appeal provided this Court with what is commonly termed an "Anders brief." See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In this brief, counsel asserted that the record and history of the instant cause reflected no errors significant enough to merit briefing on appeal. Upon receiving a copy of his attorney's brief, appellant chose to exercise his right to submit a pro se petition. His lengthy brief raised several issues of importance. Indeed, the State filed a response brief that addressed each of appellant's points of error in detail. Appellant then filed an extensive supplemental brief in order to refute the arguments the State raised in its reply.

On March 17, 1987, out of concern that counsel had not sufficiently considered and analyzed the merits of appellant's cause sufficiently, this Court ordered counsel to rebrief in accordance with Tex.R.App.P. 74. Counsel failed to respond to this order and, on May 4, 1988, this Court again ordered her to rebrief appellant's cause or appear for a contempt hearing on June 7, 1988.

On May 19, 1988, counsel submitted her second brief in the instant cause. This brief's substantive body was five pages long and addressed only one point of error, viz., that appellant received ineffective assistance of counsel at trial. Upon receiving a copy of this court-ordered brief, appellant filed a motion on June 14, 1988, to dismiss court-appointed counsel and to allow him to represent himself pro se on appeal.

To date, this Court has exercised much caution and patience in its efforts to protect appellant's constitutional rights. As a result, we now have for review: (1) a pro se brief and supplemental brief filed by appellant; (2) two briefs, one court-ordered, by appellant's counsel; and (3) the State's brief.

As an initial matter, we determine that we issued our order of March 17, 1988, improvidently. Upon reflection, we are of the opinion that appellant more than adequately briefed the salient issues of the instant cause. Appellant's pro se brief is far superior in breadth and analysis than his court-appointed counsel's first brief; counsel's second brief provided nothing to further either appellant's arguments or her own previous efforts. Therefore, in the interest of justice, and in order to protect appellant's constitutional rights, we withdraw our order of March 17, 1988.

The result of our March 17, 1988 order was to render court-appointed counsel's court-ordered brief the only brief available for our consideration. This is because an appellant is not allowed "hybrid representation" on appeal except in the Anders context. Hubbard v. State, 739 S.W.2d 341, 342 (Tex.Crim.App.1987); Dunn v. State, 733 S.W.2d 212, 213 n. 1 (Tex.Crim.App.1987) (and cases cited therein). By ordering counsel to rebrief, we terminated this cause's status as an Anders brief.

In returning this cause to the position that it occupied prior to our order, we return this cause to Anders status and are again empowered to consider both counsel's Anders brief and appellant's pro se efforts. Furthermore, in withdrawing our order of March 17, 1988, we render irrelevant appellant's motion to dismiss court-appointed counsel.

In his motion, appellant stated that his request to proceed pro se was based on his desire to direct this Court's attention to his own briefs, and away from those of his attorney. Because we are withdrawing our March 17, 1988 order, we are able to consider both counsel's initial Anders brief and appellant's two pro se briefs; appellant's motion, were it granted, would do little more than interfere with the orderly procedure of this Court, as well as with the fair administration of justice. See Hubbard v. State, 739 S.W.2d at 344-45. On this basis, we deny appellant's motion.

Moving to the merits of appellant's contentions, we observe that appellant contests the sufficiency of the evidence. Therefore, a brief description of the events that culminated in his arrest is necessary.

Officer Hughes testified that she learned from an informant that drugs were being sold at 3404 Arlington Street. Based upon this information, she asked Officer Reeves to attempt to purchase drugs at that address.

Reeves testified that on the date of the arrest, he and several other officers, including Officers Blair and Jordan conducted an undercover investigation of the suspected transactions in controlled substances at 3404 Arlington. Reeves stated that he entered the house on Arlington, noting that a silver Corvette was parked nearby. Upon entering the house, he saw appellant sitting with a woman at a "podium." The couple was selling cocaine to a man standing before the podium. Reeves testified that he requested a $50 "rock" of cocaine. Appellant received the officer's money, and the woman displayed an array of bags of cocaine, from which appellant selected his "rock."

Reeves then returned to his patrol car and discussed these events with Blair. After 15 to 20 minutes, the officers engaged in a second transaction that resulted in the arrest of the house's occupants. Appellant was not among these occupants.

Reeves testified that, after they had arrested the various persons in the house, and as they were loading these persons into the patrol cars, he saw appellant drive by the house in a silver Corvette. Although Reeves instructed some of the officers to follow the car, they were unable to detain appellant. Reeves stated that, based upon the informant's suggestion of places that appellant frequented, he and the other officers investigated several establishments in the vicinity. Ultimately, the officers found appellant at a restaurant/club and arrested him.

Officer Blair testified that he waited in the patrol car while Reeves made the two purchases. Blair stated that he never saw a silver Corvette parked near the house. The first time Blair saw the Corvette was when it passed by the house as the officers were placing the arrestees in the patrol cars. Blair further testified that he did not see appellant at the Arlington address.

In his first point of error, appellant contends that the evidence is insufficient to support a finding of guilty as to each element of the offense of delivery of cocaine. In addressing this point, we begin with a determination of the elements of "delivery of [28 grams or less of] cocaine."

Tex.Rev.Civ.Stat.Ann. art. 4476-15, sec. 1.02(7) (Vernon Supp.1988), the "Controlled Substances Act," defines "delivery" as the actual or constructive transfer from one person to another of a controlled substance ... whether or not there is an agency relationship. For purposes of this Act, it also includes an offer to sell a controlled substance....

Cocaine is a controlled substance. Id., secs. 1.02(4), 2.04(b)(4). Appellant was charged with delivery of less than 28 grams. See id., sec. 4.03(b) (delivery of 28 grams or less of cocaine is a first degree felony). Thus, there must be: (1) an intentional or knowing, (2) actual or constructive transfer (or offer to sell), (3) of a controlled substance, (4) weighing less than 28 grams. Mendoza v. State, 577 S.W.2d 240, 241 (Tex.Crim.App.1979); Martinez v. State, 640 S.W.2d 378, 380 (Tex.App.--San Antonio 1982, pet. ref'd).

The State alleged in its indictment that appellant either actually or constructively transferred cocaine to Reeves. Appellant does not contest whether the substance purchased by the officer was cocaine, whether his act was intentional or knowing, nor whether the amount involved weighed less than 28 grams. Therefore, what remains at issue is the sufficiency of the evidence regarding whether appellant transferred, either actually or constructively, cocaine to Reeves.

In assessing the evidence, we view it in the light most favorable to the verdict. Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App.1984). The critical inquiry is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime--or, as in the instant cause, an actual or constructive transfer--beyond reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Appellant clearly did not engage in an actual transfer. Conaway v. State, 738 S.W.2d 692, 695 (Tex.Crim.App.1987). Addressing the question of whether appellant's acts could be found by a jury to have amounted to a constructive transfer, we note that a constructive transfer, as interpreted under the Controlled Substances Act, has been defined as:

[T]he transfer of a controlled substance either belonging to the defendant or under his direct or indirect control, by some other person or manner at the instance or direction of the defendant....

Whaley v. State, 717 S.W.2d 26, 31 (Tex.Crim.App.1986) (quoting Davila v. State, 664 S.W.2d 722, 724 (Tex.Crim.App.1984)); but see Daniels v. State, 754 S.W.2d 214, 220 (Tex.Crim.App.1988).

In addition, the State must show that, prior to the alleged delivery, the defendant/transferor had either direct or indirect control of the substance transferred, and that the defendant/transferor knew of the existence of the transferee. Id. at 221.

Keeping in mind the above definitions and requirements, we hold that the evidence was sufficient to support the jury's finding that appellant committed an act of...